AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 4 May 2018

R v OE

[2018] NSWCCA 83

Drugs
CRIMINAL LAW CROWN APPEAL S 5DA OF THE CRIMINAL APPEAL ACT 1912 ISSUE DISCUSSED DISCOUNT FOR FUTURE ASSISTANCE REVERSED APPEAL GRANTED.

Citation: R v OE [2018] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 4 May 2018
Judge(s): Hoeben CJ at CL; Rothman J; Button J

Background

The respondent was convicted of offences relating to the supply of a large commercial quantity of pseudoephedrine in August 2014. At sentencing in March 2017, the District Court imposed a head sentence of 7 years and 4 months, arrived at by applying a 65% discount that encompassed the utilitarian value of a guilty plea, past assistance to authorities, and an anticipated future assistance component of 15%.

The future assistance component was premised on a formal undertaking the respondent gave in March 2017. Under that undertaking, he agreed to give truthful and frank evidence against his co-accused (referred to as SG) in any proceedings arising from the same drug supply, consistent with a detailed statement he had made in October 2014. That statement portrayed SG as a principal in the importation operation.

When SG's trial proceeded in February 2018, the respondent was called as the Crown's first witness. Rather than giving evidence consistent with his undertaking, the respondent gave testimony that was substantially exculpatory of SG, contradicting key aspects of his earlier statement on matters including who directed the operation, who funded travel, and who instructed him on concealing the drugs. The Crown appealed the original sentence under s 5DA of the Criminal Appeal Act 1912, which specifically permits a Crown appeal where a discounted sentence was granted for future assistance that did not eventuate.

  • Whether the respondent had failed, wholly or partly, to fulfil his undertaking to assist authorities, thereby engaging the Crown's right of appeal under s 5DA of the Criminal Appeal Act 1912
  • How the Court should recalculate the sentence once the discount for future assistance was reversed
  • Whether a broader resentencing exercise was available or required on such an appeal (noted but not determined)

Decision

The Court found the respondent had clearly failed to fulfil his undertaking. His trial evidence directly contradicted the statement attached to the undertaking in multiple material respects. The respondent had signed that statement as true, acknowledged he had withheld no information, and received legal advice before giving the undertaking. The exculpatory effect of his evidence at trial was unambiguous.

The statutory precondition under s 5DA was therefore satisfied, and the Court's jurisdiction to vary the sentence was enlivened. The Court confirmed that the relevant question is whether the offender has "failed wholly or partly to fulfil the undertaking." On the facts, the respondent had failed that obligation.

On recalculation, Rothman J worked back from the original sentence to identify the starting point, then applied the remaining discount (50%, being the original 65% less the 15% attributable to future assistance) to derive a revised head sentence of 10 years and approximately 5.5 months. The Court then applied the same ratio of non-parole period to head sentence that the original sentencing judge had used to arrive at a revised non-parole period of 5 years and 4 months.

The Court noted, without deciding, a question about whether a more complete resentencing process was available on a s 5DA appeal. Button J added a brief observation clarifying that his earlier judgment in R v GD [2013] NSWCCA 212 must be read in light of the unusual circumstances of that case, namely, the sentencing judge's complete failure to allocate any portion of the discount between past and future assistance.

Orders Made

  • Appeal granted
  • The District Court sentence imposed on 13 March 2017 was set aside
  • The respondent was resentenced to a non-parole period of 5 years and 4 months imprisonment, commencing 15 August 2014 and concluding 14 December 2019, with a remainder of term of a further 5 years and 1.5 months, concluding 29 January 2025
  • The respondent became first eligible for parole on 14 December 2019

Key Takeaways

  • Section 5DA of the Criminal Appeal Act 1912 grants the Crown a specific right of appeal where a sentence discount was granted for anticipated future assistance that was not provided; the statutory precondition is that the court be satisfied the offender has "failed wholly or partly" to fulfil the undertaking.
  • Where an offender's trial testimony is materially inconsistent with a signed statement attached to a formal assistance undertaking, and where that testimony is substantially exculpatory of the co-accused the offender promised to implicate, the failure condition under s 5DA is readily established.
  • On a successful s 5DA appeal, the Court of Criminal Appeal may reverse the future assistance component of the discount and recalculate the sentence accordingly, without necessarily conducting a full resentencing exercise, though the broader question of whether a more complete resentencing is available was expressly left open.
  • A combined discount of 65% for plea of guilty and assistance was noted by Rothman J to appear "inordinately high," though no submission was made that it was in error, and the Court did not disturb that component of the original calculation.
  • Button J's judgment in R v GD [2013] NSWCCA 212 is confined to its unusual facts, specifically where the sentencing judge made no allocation at all between past and future assistance, and should not be read more broadly.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5DA, 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 22A, 23
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)

Cases:
- R v Ellis (1986) 6 NSWLR 603
- R v GD [2013] NSWCCA 212
- R v Shahrouk (2014) 241 A Crim R 274; [2014] NSWCCA 87